Citation Nr: 1332060 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-08 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for reflex sympathetic dystrophy, residuals of left ankle injury, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from October 1994 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The appeal was certified to the Board by the RO in Atlanta, Georgia. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In the January 2103 remand, the Board directed that the Veteran be afforded a VA examination to determine the current severity of his service-connected reflex sympathetic dystrophy, residuals of left ankle injury. The Veteran underwent a VA examination in February 2013, however, such examination is inadequate for rating purposes. In this regard, with respect to range of motion testing, the examiner indicated that the Veteran's left ankle plantar flexion was limited to 20 degrees with pain, and that his dorsiflexion was limited to 5 degrees with pain; however, upon repetitive-use testing, the examiner found normal range of motion of the left ankle. Moreover, the examiner noted that the left ankle had functional impairment of less movement than normal, as well as pain on movement. The examiner appears to have confused the right ankle findings with the left ankle findings on repetitive-use range of motion testing. Further, the examiner failed to address whether there was paralysis of the posterior tibial nerve, manifested by paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes that cannot be flexed; weakened adduction; and impaired plantar flexion, as per the aforementioned remand directives. The record does not contain sufficient evidence to rate the Veteran's residuals of his left ankle injury. Accordingly, the Veteran must be scheduled for another VA examination to determine the current severity of his service-connected reflex sympathetic dystrophy, residuals of left ankle injury. 38 C.F.R. § 4.71a, Diagnostic Codes 5271-8525 (2013). In addition, in a statement received in June 2013, the Veteran suggested that he had ongoing treatment at VA in connection with his current appeal. The most recent VA outpatient treatment record of record is dated in July 2013. Therefore, the RO must obtain the Veteran's complete VA outpatient treatment records dated in July 2013 to the present, and associate them with the record. 38 C.F.R. § 3.159 (c) (2) (2013). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain the Veteran's complete VA outpatient treatment records dated in July 2013 to the present. All records obtained must be associated with the evidence of record. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain these records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded an appropriate VA examination to determine the current severity of his service-connected reflex sympathetic dystrophy, residuals of left ankle injury. The claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All indicated testing must be conducted. All pertinent symptomatology and findings should be reported in detail. The examiner must conduct full range of motion studies on the service-connected reflex sympathetic dystrophy, residuals of left ankle injury. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected reflex sympathetic dystrophy, residuals of left ankle injury. The examiner must state whether there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity; ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees; or complete paralysis of the posterior tibial nerve, with paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature, toes cannot be flexed, adduction is weakened, and plantar flexion is impaired. A complete rational for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the benefits sought on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).